Held, Amos F. Palmer, at the time of Winslow v. Goodwin, 7 Met., 363; Weale his decease, had an interest in this policy v. Lower, Pollexfen 54; Anonymous, 2 which was transmissible by descent; and Vent., 347; Pinbury v. Elkin, 1 P. Wms., consequently, that the respondent, Chas. 563; Chauncey v. Graydon, 2 Alk., 616; P. Palmer, was entitled to that portion of Hodgson v. Rawson, 1 Ves., 46; Barnes the fund which his father would have v. Allen, 1 Brown C. C., 181; Jones v. taken if living. Roe, 3 Term R., 88; Fearne on Remainders, 364; 4 Kent's Com., 261.

Our own Court has applied this doctrine to a life insurance policy like the one in the case at bar, and held that an interest vests in the payee during the life time of the person whose life is insured, so as to be the subject of testamentary disposition, notwithstanding such interest is liable to be defeated by a subsequent contingency. Keller v. Gaylor, 40 Conn., 343; Conn. Mutual Life Ins. Co. v. Burroughs, 34 Conn., 305; Chapin v. Fellowes, 36 Conn., 132.

The moment this policy was executed and delivered, it became property, and the title to it vested in some one. It will not be claimed that it vested in the person whose life was insured. It must have vested then in all or in a part of the payees. The payees consist of two parties, the wife, and the children. As only one could take and enjoy the property ultimately, it did not vest in all as tenants in common; nor did it vest in either so as to give a right to the present enjoy

ment of it. It was not, however, a mere
expectancy, nor a naked possibility, but it
was a possibility coupled with a present in-
terest. It was visible, tangible property,
and, like any other insurance policy, it
was capable of assignment, and had an
appreciable value, Each party took a con-
ditional, not an absolute, right to the
whole policy. It was not a condition pre-
cedent, but subsequent. The title vested
in point of right immediately, but was
liable to be divested upon the happening
of a subsequent event. The right to the
policy, in a strict sense, was not contin-
gent; the possession and enjoyment of
the fund thereby created were postponed
to the future, and were contingent. This
contingency applied to both parties-to A

the wife as well as to the children. Her
enjoyment of the fund depended upon
her surviving her husband; the children's,
upon her husband's surviving her. In re-
spect to each, it was a then present right
to the future enjoyment of property, but
it was liable to be defeated by a subse-
quent contingency, and was certain to be
defeated as to one of them. That such a
right is recognized as property and is
transmissible to heirs, is a proposition
abundantly established by the authorities. days thereafter. The property was de-

This action was brought upon a policy of insurance which contained a clause that, in case the premises were destroyed by fire, proof of loss must be furnished within thirty

We are therefore of opinion that Amos F. Palmer, at the time of his decease, had had an interest in this policy, which was transmissible by descent, and consequently that the respondent, Charles P. Palmer, is entitled to that portion of the fund which his father would have taken if living.

Opinion by Carpenter, J.



Blossom, respt., v. Lycoming Fire Insurance Co., applts.

Decided February 8, 1876.

substantive compliance with conditions of policy as to proof of loss, unless waived, is necessary to entitle the insured to recover. The company may reject a claim on the two-fold ground that the proof of loss was too late, and that the insurance was fraudulently obtained; it is not bad for duplicity.

stroyed Nov. 29, 1870. No communication,


direct or indirect, took place between plain- NEW YORK SUPREME COURT-GENERAL

tiff and defendant, or its agents, until in April following, when proof of loss was forwarded. Defendant's agent wrote to the attorney for the plaintiff that the proof of loss was too late, that it should have been made within thirty days after the fire, and that the claim was fraudulent. The judge charged the jury that if they believed from this letter that defendant intended to waive and did waive the proof of loss, and considered the case upon its merits in regard to its being fraudulent, then plaintiff would be entitled to recover, otherwise not.

G. W. Hotchkiss, for respt.
O. W. Chapman, for applt.

TERM, FIRST DEPARTMENT. Grace R. Vanderlip, plaintiff and appellant v. Henry Keiser et al., defendants and respondents.

Held, Error. That a substantial compliance with the condition of the policy as to proof of loss was necessary to entitle plaintiff to recover, unless waived by the defendant (52 N. Y. 502; 57 id. 500); that the taking of another and distinct objection in the letter from defendant's agent was not a waiver of the objection that plaintiff had failed to furnish proof of loss within the time required; that the objections were not bad for duplicity, and neither operated to annul or destroy the other.

Decided January 28, 1876.

In an action against several defendants for a balance upon an alleged account stated, it must be proved that there was a joint undertaking on the part of all the defendants to pay the amount of such balance.

Appeal from judgment entered on the report of a referee dismissing the plaintiff's complaint with costs.

This action was brought by the plaintiff upon a claim assigned by the firm of Vanderlip & Taylor to recover from the defendants jointly the sum of $3,000 upon an account stated, the same being for money advanced for and in behalf of defendants by the firm of Vanderlip & Taylor. The answer put in issue all the facts alleged in the complaint.

It appeared on the trial that at the time of the death of Mrs. C. K., the mother of the defendants, in 1867, there was on deposit to her credit with the firm of Vanderlip & Taylor a considerable sum of money. After the death of their mother, the children, who are the defendants in

It appeared that K., defendant's adjuster, visited the premises unknown to plaintiff and made inquiries into the circumstances

ity or direction from defendant, and that he did not intimate that defendant would or was liable to pay the loss, or that the loss was recognised by defendant as a valid claim.

of the fire, that he did this without author- this action, deposited money, from time to time, with Vanderlip & Taylor, which was carried to the credit of Mrs. C. K-s account. This account, after being kept for some time in the name of Mrs. C. K., was changed to the name of the estate of C. K.; afterwards the account was changed to the name of Henry Keiser, trustee.

Held, That had plaintiff known of this visit of K., it could not have legitimately influenced his action or omission to act in re-band of the defendant, Mary E. Metz, one spect to the proof of loss.

Subsequently Mr. A. J. Metz, the hus

of the defendants, appears to have been

Judgment of General Term on order de-authorized to act as the agent of the denying motion for a new trial and directing fendants, but it is not shown what was the judgment on verdict reversed and new trial granted.

nature or extent of the agency, nor is
there anything to justify the inference
any of the defendants conferred upon

Opinion by Allen, J.

Mr. Metz any authority to state an account as upon a joint liability. In the course of Mr. Metz's agency, he applied to the firm of Vanderlip & Taylor to advance the sum of $9,000, which was re

quired to satisfy a mortgage due by the estate of Mrs, C. K., and the money was advanced by the firm, although in doing so the account was largely overdrawn, as stated by Mr. Metz at the time. This payment was undoubtedly made to Metz for the purpose of satisfying the mortgage, with the knowledge and sanction of all the defendants, and enured to their benefit, about $6,000 of the amount, how ever, was money held by V. & T. The complaint was dismissed on the ground that no joint liability was established.

question was in fact decided, or that its decision was necessarily involved in the judgment or decree as rendered.

In error to the Supreme Court of Appeals of the State of Virginia.

The Circuit Court of Fauquier County, tember 13, 1867. From this decree LersVa., rendered a decree in this cause Sep

ner prayed an appeal to the District Court of Appeals, May 17, 1869. This was allowed by W. Willoughby, Judge. Upon this allowance the appeal was docketed in the Appellate Court, and the parties appeared without objection or protest and were heard. Upon the hearing the decree of the Circuit Court was reversed

and the cause remanded with instructions to proceed as directed. When the case came to the Circuit Court upon the man

Held, That the right of the plaintiff to recover depended upon a joint undertak-date of the Appellate Court, Bolling aping by defendants to pay the balance peared and objected to the entry of the shown by an alleged account stated. That decree which had been ordered, for the the view of the referee, that upon the evidence no joint undertaking is shown, is the Judge who allowed the appeal, had reason, among others, that Willoughby, entirely correct. been appointed to his office by the com

The alleged advance to all the defend-manding general exercising military auants to discharge a mortgage affecting thority in Virginia under the reconstrucproperty in which they had a joint inter- tion acts of Congress, and that those acts est was a balance made up from the conwere unconstitutional and void. This sideration of various deposits with the firm objection was overruled and a decree enof V. & T., in which the defendants had tered according to the mandate. From no joint interest. but separate and differ- this decree Bolling took an appeal to the ent interests. No joint undertaking being Supreme Court of Appeals, where the acshown, the judgment should be affirmed. tion of the Circuit Court was affirmed. Opinion by Brady, J.; Davis, P. J., To reverse this decree of affirmance the and Daniels, J., concurring. present writ of error has been prosecuted.

Bolling, plaintiff in error v. Lersner,
defendant in error.

Decided October Term, 1875.

This Court cannot re-examine the judgment or decree of a State Court simply because a Federal question was

Held, Bolling presented to the Court for its determination the question of the constitutionality of the reconstruction acts. This was a Federal question, but the record does not show that it was actu

ally decided, or that its decision was necessary to the determination of the cause.

The case might have been disposed of the constitutionality of the reconstruction in the State Court without deciding upon acts. Thus. if it was held that the objec

presented to that Court for determi- tion to the authority of the Judge came nation. It must appear that such a

too late, or that the allowance of an appe a

by a Judge de facto was sufficient for all A verdict was rendered for the plaintiffs. the purposes of jurisdiction in the Appel-The defendant moved for a new trial, and late Court, it would be quite unnecessary the case was heard by the full court in to determine whether the Judge held his general term. That court ordered a judgoffice by a valid appointment. We ment to be entered for the defendant, might, therefore, dismiss the case because veredicto non obstante. it does not appear from the record that a decision of the Federal question was necessary.

The lease created a term beginning on the 1st day of February, 1864, and to continue five years. It recites that the lessors, in making the lease, "were acting as a church extension committee, by authority and on behalf of the General Assembly of the Presbyterian Church, Old School." The leasehold premises are described as "being lot number four and part of lot number five," &c., "as now held by the parties of the first part," &c. The lessee covenants, among other things, "that he will well and truly surrender and deliver up the possession of said premises to the said parties of the first

Charles Stott, et al., ptffs in error, v. part, their successors and assigns, in acWilliam Rutherford.

cordance with the stipulations herein contained, whenever this lease shall terminate."

But we find that the Federal question was not decided. All the Judges agreed that Willoughby was a Judge de facto, and that his acts were valid in respect to the public and third parties, even though he might not be rightfully in office.

Dismissed for want of jurisdiction.
Opinion by Waite, C. J.



Decided October Term, 1875. An action may be maintained in their individual names by a church committee upon a lease executed by them relied upon in this case.

as a committee.

A lessce cannot dispute his lessor's title.

There are two answers to the defence

In error to the Supreme Court of the

District of Columbia.

Held, 1. The recital in the lease as to the character in which the lessors acted, and all that is said upon the subject in the bill of exceptions, are not inconsistent This is an action of covenant brought with their holding the legal title in trust upon an indenture of lease executed by to enable them the better to discharge the the plaintiffs in error and one P. D. Gur-duties touching the property with which ley, since deceased, to the defendant in error. The declaration sets out sundry breaches of stipulations contained in the lease. The defendant plead non est factum and satisfaction of the claim of the plaintiffs by payment.

they were clothed.

On the trial he objected to the admission of the lease in evidence, upon the ground that it showed upon its face that the lessors had no title to the premises, and that the instrument was, therefore, a nullity. The Court admitted the evidence, and an exception was regularly taken.

2. We think the principle that the lessee cannot dispute the title of his lessor also applies. We see nothing to take the case out of this long settled and salutary rule. The rule applies with peculiar force where the lessor was in possession and transferred that possession upon his faith in the validity of the lease to the lessee. Judgment for plaintiff in error. Opinion by Swayne, J.


Plaintiff rented of defendant a store in the Village of Avon for the term of two years, payable quarterly in advance. Prior to the termination of his lease the building was destroyed by fire.


Plaintiff had leased certain premises to defendant. Defendant occupied or could have occupied same. At the end of two months the plaintiff rented the premises to other parties, who went into posses-rent under the new lease. The rent was

Before the destruction of the building plaintiff and defendant made a verbal arThis action was brought for two months' rangement by which plaintiff was to have a lease of the store for the term of two years from and after the expiration of the then existing term. Defendant agreed to make certain repairs on the store to the amount of $250, and this sum was to apply on the


to be the same under the new as under the old lease.

The plaintiff was non-suited.

E. Forman for pltff.
Gray & Costellar for deft.

Plaintiff made the repairs to the said amount of $250, but defendant did not give any new lease, and after the property was destroyed defendant sold the property to another party.

Plaintiff was non-suited.

Philander W. Fobes v. Edward H

Decided January, 1876. Acceptance of new tenants operates as a surrender of a lease.

recover the amount as expended in repairs.

Held, The non-suit was erroneously granted. The defendant was clearly liable for two months' rent. The acceptance by the plaintiff of other tenants at the expiration of the two months was equivalent to the acceptance of a surrender of the lease by the defendant, and discharged him from the payment of rent afterwards.

Held, That the consideration for making the repairs was the lease thereafter to be made. The destruction of the store rendered a lease for another two years valueless, and in this view of the effect of the

The order denying the motion for a new trial, and the judgment should be re-fire the defendant acquiesced as he did not

versed, and a new trial granted with costs to abide the event.

make a new lease or even offer one to the plaintiff.

Opinion by E. Darwin Smith, J.

That, the consideration for the repairs having failed, plaintiff could recover what they were worth, and the fact that the repairs were to apply on the lease in payment of rent made no difference.



Smith v. Farnsworth.
Decided January, 1876.

Where a lessee agrees to and does make
repairs, under an agreement with the
lessor that his lease shall be renewed
and the amount expended in repairs
shall be applied to the rents, and the
demised premises are destroyed before
the commencement of the new term and
before the new lease is delivered, he may


That the repairs were in legal intendment money, and when recoverable at all could be recovered as money. By the repairs when completed the value of defendant's property was increased without any benefit to the plaintiff, although made at his expense.

Non-suit set aside and a granted.

Opinion by Mullin, P. J.; Smith and Gilbert, JJ., concurred.

new trial

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